{"id":178158,"date":"2010-08-04T00:00:00","date_gmt":"2010-08-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-vs-dr-jwala-pd-pandey-on-4-august-2010"},"modified":"2015-11-24T23:41:10","modified_gmt":"2015-11-24T18:11:10","slug":"state-of-bihar-vs-dr-jwala-pd-pandey-on-4-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-vs-dr-jwala-pd-pandey-on-4-august-2010","title":{"rendered":"State Of Bihar vs Dr.Jwala Pd. Pandey on 4 August, 2010"},"content":{"rendered":"
Patna High Court<\/div>\n
State Of Bihar vs Dr.Jwala Pd. Pandey on 4 August, 2010<\/div>\n
Author: Ramesh Kumar Datta<\/div>\n
                IN THE HIGH COURT OF JUDICATURE AT PATNA\n\n                          G.APP. (SJ) No. 41 of 1989\n\n                Against the judgment of acquittal dated 29th June, 1989, passed by\n                Shri N.C. Lala, Special Judge (Vigilance), Patna in Spl. Case No.\n                32\/86.\n                                           ---------------\n<\/pre>\n
                The State of Bihar        ………………………… APPELLANT
\n                                    VS.\n<\/p>\n
                Dr. Jwala Prasad Pandey, son of Late Sadhu Saran Pandey,
\n                Village- Imadpur Karani P.S. Bikramganj, District-Rohtas, at
\n                present- Assistant Key Village Officer, Veterinary Hospital,
\n                Lakhisarai Block, District-Munger – Accused… RESPONDENT\n<\/p>\n
                                                  —————\n<\/p>\n
                For the appellant:-    M\/S. Rakesh Kumar, I\/C Spl. PP,
\n                                        Vigilance & Prabhu Narayan Sharma, JC
\n                                         to I\/C Spl. P.P.\/Vigilance.\n<\/p>\n
                For the Respondent: M\/S Devendra Prasad Sinha, Sr. Advocate
\n                                        and Sri Satyendra Kumar Sinha,Advocate\n<\/p>\n
                                           —————\n<\/p>\n
                                         PRESENT<\/p>\n
                THE HON’BLE MR. JUSTICE RAMESH KUMAR DATTA<\/p>\n
R.K.Datta, J.               This Criminal Appeal against acquittal has been filed<\/p>\n
                by the State of Bihar against the judgment dated 29th June, 1989<\/p>\n
                passed in Special Case No. 32 of 1986 arising out of Vigilance<\/p>\n
                P.S. Case No. 11\/1986 by the Special Judge, Vigilance, Patna by<\/p>\n
                which he has held the accused not guilty of the charges under<\/p>\n
                Section 161 of the Indian Penal Code and Section 5(2) read with
\n                        2<\/span><\/p>\n
Section 5(1) (d) of the Prevention of Corruption Act, 1947 and<\/p>\n
accordingly, acquitted the accused.\n<\/p>\n
             2. The prosecution case is that on 19.3.1986, PW 9,<\/p>\n
Rabindra Kumar Singh, submitted a written complaint stating that<\/p>\n
his brother’s name is in the Below Poverty Line List of the Block<\/p>\n
Office, Lakhisarai. It was alleged that the accused, Dr. Jwala<\/p>\n
Prasad Pandey, Block Animal Husbandry Officer said that until he<\/p>\n
gives Rs. 400\/- as bribe, his application will not be sent to the<\/p>\n
Bank. It is further alleged that he stated that, in that money, there<\/p>\n
was share of three persons, namely, himself, the Block<\/p>\n
Development Officer and the Nazir. Since the complainant did not<\/p>\n
want to give the bribe he made the complaint.\n<\/p>\n
             3. P.W.4, Jahir Ahmad, the Inspector of Vigilance<\/p>\n
was deputed to verify the complaint and in his report dated<\/p>\n
24.3.1986 he stated that he went to Lakhisarai on 21.3.1986, met<\/p>\n
the complainant and from there they went to the Block Office and<\/p>\n
thereafter to his residence which was nearby. He learnt that he had<\/p>\n
gone out; since the accused did not return till evening, therefore,<\/p>\n
on 22.3.1986 in the morning at 8.00 A.M. he along with the<\/p>\n
complainant went and sat in Sheo Bharti Hotel and the<\/p>\n
complainant’s brother Shri Ram Sagar Singh went to call the<\/p>\n
accused who came with him after some time. Then he repeated his
\n                       3<\/span><\/p>\n
demand and on entreating for decreasing the amount         by the<\/p>\n
complainant, he stated that he has to give Rs. 200\/- out of the<\/p>\n
bribe amount to the Block Development Officer and Rs. 50\/- to<\/p>\n
the Nazir and therefore, there was no question of decreasing the<\/p>\n
same. On his demand to pay something immediately, the<\/p>\n
complainant gave him two notes of Rs. 50\/- each promising to<\/p>\n
arrange the rest and pay to him. Thereafter the FIR was registered<\/p>\n
and a memorandum of 3 G.C. notes of Rs. 100\/- given by the<\/p>\n
complainant was prepared and the notes were returned to him to<\/p>\n
be given to the accused on his demanding the bribe. On 2.4.1986<\/p>\n
the raiding party was constituted under the leadership of<\/p>\n
Brijendra Kumar, Deputy Superintendent of Police, PW 6 who<\/p>\n
was also made Investigating Officer of the case and on 2.4.1986<\/p>\n
the raiding party went from Patna to Lakhisarai. After waiting for<\/p>\n
some time when the accused entered his chamber at 3.30 P.M. the<\/p>\n
complainant, PW 9 went to his chamber and allegedly on his<\/p>\n
demand handed him over the said 3 G.C. notes of Rs. 100\/- which<\/p>\n
the accused took and kept under a Register on the second rack of<\/p>\n
his whatnot on the right side of his chair. On signal from the<\/p>\n
verifier, the other members of the raiding party came into the<\/p>\n
chamber and in the presence of two independent witnesses the<\/p>\n
search was made on the accused upon which nothing was
\n                        4<\/span><\/p>\n
recovered from him but subsequently, on further search, the 3<\/p>\n
G.C. notes of Rs. 100\/- were recovered from under the Register on<\/p>\n
the second rack of the whatnot. After the investigation the<\/p>\n
Vigilance police submitted charge sheet against the respondent<\/p>\n
and he was put on trial.\n<\/p>\n
             4.    The defence of the accused during the trial was<\/p>\n
that no application was pending with him with respect to the<\/p>\n
brother of the complainant nor he ever demanded or accepted any<\/p>\n
amount from the complainant and the case was one of plantation<\/p>\n
at the behest of one Ramdeo Singh, contractor, who was against<\/p>\n
the Block Development Officer and since the accused used to take<\/p>\n
the side of the Block Development Officer, hence the complainant<\/p>\n
under the influence of said Ramdeo Singh, contractor, falsely<\/p>\n
implicated him.\n<\/p>\n
             5. In the course of trial, the prosecution examined 9<\/p>\n
witnesses among whom, PW 1, Maheshwar Prasad Mishra is the<\/p>\n
Special Magistrate, Vigilance who had accompanied the raiding<\/p>\n
party and on the recovery of the G.C. notes had signed over them.<\/p>\n
P.W.5 Sarjug Prasad and P.W.8 Shekhar are the two seizure list<\/p>\n
witnesses among whom PW-8 has been declared hostile. P.W.9 is<\/p>\n
the complainant, Rabindra Kumar Singh, P.W.4, Inspector,<\/p>\n
Vigilance, Jahir Ahmad who had given the verification report and
\n                        5<\/span><\/p>\n
also accompanied the complainant to the chamber of the accused<\/p>\n
at the time of the giving of the bribe. P.W.6 Brijendra Kumar,<\/p>\n
Deputy Superintendent of Police, Vigilance was the leader of the<\/p>\n
raiding party as well as the Investigating Officer of the case. PW-<\/p>\n
2 Ram Nath Prasad and P.W.-7 Lal Bahadur Singh are both<\/p>\n
formal witnesses who had proved respectively the sanction order<\/p>\n
and the case diary, while P.W.-3 Sarda Nand Singh, Inspector,<\/p>\n
Vigilance has been tendered for cross-examination.<\/p>\n
             6. In the course of trial the prosecution exhibited the<\/p>\n
complaint dated 19.3.1986 as Ext-8; Ext. 3 is the verification<\/p>\n
report dated 24.3.1986, Ext. 5 is the formal FIR; Ext. 4 is the<\/p>\n
memorandum of G.C. notes, Ext. 6 is the seizure list and Ext. 2 is<\/p>\n
the sanction order for prosecution.\n<\/p>\n
             7. The defence has also examined two witnesses,<\/p>\n
namely, Ram Sagar Singh, the cousin of the complainant as<\/p>\n
D.W.1 and Ghanshyam Prasad Singh, Branch Manager, Kshetriya<\/p>\n
Gramin Bank, Lakhisarai as DW- 2. It has also exhibited the BPL<\/p>\n
list as Ext.A, a duplicate loan application dated 11.10.1985 of Jai<\/p>\n
Prakash Singh, brother of the complainant as Ext.B and the list of<\/p>\n
applications sent by the Block Office to the Kshetriya Gramin<\/p>\n
Bank through letter no. 77 dated 28.1.1986 as Ext.C. The pre-<\/p>\n
inspection report, with respect to application of Jai Prakash Singh,
\n                        6<\/span><\/p>\n
of the Field Supervisor is Ext. D. Annexure-A document as sent<\/p>\n
by the Bank is Ext. E. Annexure-B document relating to subsidy<\/p>\n
by DRDA is Ext.F; the loan documents of Jai Prakash Singh is<\/p>\n
Ext. G\/2 and the purchase schedule dated 31.3.1986 with respect<\/p>\n
to loan granted to Jai Prakash Singh is Ext. H.\n<\/p>\n
             8. On a consideration of the entire materials on the<\/p>\n
record the learned Special Judge, Vigilance came to the<\/p>\n
conclusion that the application of Jai Prakash Singh, brother of the<\/p>\n
complainant, was forwarded before the filing of the complaint and<\/p>\n
Ram Sagar Singh, cousin of the complainant, received his loan in<\/p>\n
1983 and therefore no question arises for the complainant to<\/p>\n
approach the accused and give bribe either in official capacity or<\/p>\n
otherwise. He also held that the prosecution evidence does not<\/p>\n
inspire confidence that the accused actually made any demand of<\/p>\n
bribe or accepted Rs. 100\/- on 22.3.1986. He further held that the<\/p>\n
prosecution has been able to prove that Rs. 300\/- was recovered<\/p>\n
from under a Guard file which was kept by the side of the chair of<\/p>\n
the accused but he further came to the conclusion that in the<\/p>\n
absence of the use of phenolphthalein power on the G.C. notes, it<\/p>\n
cannot be said that the accused had actually handled the said G.C.<\/p>\n
notes and as such in the recovery of the notes from below the<\/p>\n
guard file kept on the rack in the chamber of the accused, the
\n                         7<\/span><\/p>\n
possibility of plantation cannot be ruled out and therefore held that<\/p>\n
the prosecution has not been able to prove by reliable evidence<\/p>\n
that actually the accused demanded and received Rs. 300\/- as<\/p>\n
bribe from the complainant on 2.4.1986. For all the aforesaid<\/p>\n
reasons, he held the accused not guilty of the charges and<\/p>\n
acquitted him.\n<\/p>\n
             9. Learned Special Public Prosecutor for the<\/p>\n
Vigilance submits that in view of the evidence of the complainant,<\/p>\n
P.W. 9 and the verifier, P.W.4, it is clear that a demand was made<\/p>\n
by the respondent which was duly verified and thereafter the bribe<\/p>\n
of Rs. 300\/- was taken and recovery of said Rs. 300\/- was made<\/p>\n
on search. It is submitted that the same are the only requisites for<\/p>\n
coming to a conclusion that an accused had committed the offence<\/p>\n
under Section 161 IPC (as it then was) and Section 5(2) read with<\/p>\n
Section 5(1)(d) of the Prevention of Corruption Act, 1947. It is<\/p>\n
urged by learned counsel that both the P.Ws. have categorically<\/p>\n
averred the said facts and, as a matter of fact, on the evidence of<\/p>\n
P.W.4, the Inspector, Jahir Ahmad, alone the prosecution was able<\/p>\n
to prove the case and the court below ought to have so held. In<\/p>\n
this regard, he relies upon a decision of the Supreme Court in the<\/p>\n
case of Gian Singh Vs. State of Punjab: AIR 1974 SC 1024, in<\/p>\n
relevant part of para-5 of which it has been held as follows:
\n 8<\/span><\/p>\n
    “5. – ……..        …………… …………
\n    We see no reason to disbelieve the
\n    evidence of these two constables, and if
\n    their testimony is true, the defence
\n    version has been disproved. Counsel for
\n    the appellant commented on the non-
\n    examination of Buta Singh and his
\n    mother, Dhan Kaur, and feebly
\n    suggested that the evidence of the
\n    prosecution witnesses was discrepant.
\n    He also pleaded that police witnesses in
\n    trap cases are suspect, that person who
\n    have been prosecution witnesses more
\n    than once are stock witnesses, and that a
\n    plausible explanation had been put
\n    forward by the accused, the cumulative
\n    effect of these factors being that the
\n    accused is entitled to acquittal. In a
\n    recent case to which one of us was party
\n    (Som Prakash V. State of Delhi, Cri
\n    Appeal No. 143 of 1970, D\/- 25.1.1974
\n    = (reported in AIR 1974 SC 989) this
\n    Court has held that police officials
\n    cannot be discredited in a trap case
\n    merely because they are police officials,
\n    nor can other witnesses be rejected
\n    because on some other occasion they
\n    have been witnesses for the prosecution
\n    in the past. Basically, the Court has to
\n    view the evidence in the light of the
\n    probabilities and the intrinsic credibility
\n    of those who testify. The serious hurdle
\n    in the way of the appellant here is that
\n    the court which has seen the witnesses,
\n    and the appellate Court which has
\n    reviewed the matter over again, have
\n    found no good reason to discard the
\n    prosecution version. We are, therefore,
\n    satisfied that the appellant has failed in
\n    his endeavour to prove that the charge
\n    leveled against him has not been
\n                         9<\/span><\/p>\n
                            satisfactorily made out. We dismiss the
\n                            appeal, and if the accused is on bail, he
\n                            will surrender in consequence. “<\/p>\n
             10. Learned counsel also submits that earlier also<\/p>\n
before the PW 4 the accused had accepted two notes of rupees<\/p>\n
fifty   from the complainant PW 9 and thus the case of the<\/p>\n
prosecution is doubly fortified.\n<\/p>\n
             11. Learned counsel also contends that the question<\/p>\n
of motive is irrelevant when the prosecution succeeds in<\/p>\n
establishing the demand and acceptance and the same would be<\/p>\n
sufficient to convict the accused and for the said reason alone the<\/p>\n
impugned judgment is liable to be set aside.\n<\/p>\n
             12. Learned counsel also relies upon Section 4 of the<\/p>\n
Prevention of Corruption Act, 1947 to argue that once the<\/p>\n
prosecution has proved the case of demand and acceptance, the<\/p>\n
onus was clearly upon the accused to prove that the amount<\/p>\n
received was not illegal gratification but neither the accused led<\/p>\n
any evidence on the point nor he took any plea as to why he had<\/p>\n
received the said amounts. In support of the same learned counsel<\/p>\n
relies upon a decision of the Supreme Court in the case of<\/p>\n
Chaturdas Bhagwandas Patel Vs. The state of Gujarat: AIR 1976<\/p>\n
SC 1497, paras 22 and 23 of which are quoted below:-
\n 10<\/span><\/p>\n
     “22.- Indeed, when a public servant,
\n     being a police officer, is charged under
\n     Section 161, Penal Code and it is alleged
\n     that the illegal gratification was taken by
\n     him for doing or procuring an official
\n     act, the question whether there was any
\n     offence against the giver of the
\n     gratification which the accused could
\n     have investigated or not, is not material
\n     for that purpose. If he has used his
\n     official position to extract illegal
\n     gratification, the requirement of the law
\n     is satisfied. It is not necessary in such a
\n     case for the Court to consider whether or
\n     not the public servant was capable of
\n     doing or intended to do any official act
\n     of favour or disfavour (see Bhanuprasad
\n     Hariprasad V. State of Gujarat (1969) 1
\n     SCR 22 = (AIR 1968 SC 1323) and Shiv
\n     Raj Singh V. Delhi Administration,<\/a>
\n     (1969) 1 SCR 183 = (AIR 1968 SC
\n     1419).\n<\/p><\/blockquote>\n
     23.- In the light of what has been said
\n     above, it is clear that the appellant has
\n     failed to rebut the presumption arising
\n     against him under Section 4(1) of the
\n     Prevention of Corruption Act. It is true
\n     that the burden which rests on an
\n     accused to displace this presumption is
\n     not as onerous as that cast on the
\n     prosecution to prove its case.
\n     Nevertheless, this burden on the accused
\n     is to be discharged by bringing on record
\n     evidence, circumstantial or direct, which
\n     establishes with reasonable probability,
\n     that the money was accepted by the
\n     accused, other than as a motive or
\n     reward such as is referred to in Section\n<\/p><\/blockquote>\n
     161. The appellant had hopelessly failed
\n     to show such a balance of probability in
\n     his favour.”\n<\/p><\/blockquote>\n
                       11<\/span><\/p>\n
            He further relies upon a decision of the Apex Court<\/p>\n
in the case of Trilok Chand Jain Vs. Vs. State of Delhi: AIR 1977<\/p>\n
SC 666, in para-8 of which it has been held as follows:\n<\/p><\/blockquote>\n
                           “8.- Section 4 (1) of the Prevention of
\n                           Corruption Act reads:\n<\/p><\/blockquote>\n
                           “Where in any trial of an offence
\n                           punishable under Section 161 or Section
\n                           165 of the Indian Penal Code ( or of an
\n                           offence referred to in clause (a) or clause\n<\/p><\/blockquote>\n
                           (b) of sub-section (1) of Section 5 of this
\n                           Act punishable under sub-section (2)
\n                           thereof,) it is proved that an accused
\n                           person has accepted or obtained, or has
\n                           agreed to accept or attempt to obtain, for
\n                           himself or for any other person, any
\n                           gratification    (other     than      legal
\n                           remuneration) or any valuable thing
\n                           from any person, it shall be presumed
\n                           unless the contrary is proved that he
\n                           accepted or obtained, or agreed to accept
\n                           or attempted to obtain, that gratification
\n                           or that valuable thing, as the case may
\n                           be, as a motive or reward such as is
\n                           mentioned in the said Section 161, or, as
\n                           the case may be, without consideration
\n                           or for a consideration which he knows to
\n                           be inadequate.”\n<\/p><\/blockquote>\n
                           From a reading of the above provision it
\n                           is clear that its operation, in terms, is
\n                           confined to a trial of an offence
\n                           punishable under Section 161 or Section
\n                           165, Penal Code or under clause (a) or\n<\/p><\/blockquote>\n
                           (b) of Section 5(1) read with sub-section
\n                           (2) of that section of the Act. If at such a
\n                           trial, the prosecution proves that the
\n                           accused has accepted or obtained
\n                           gratification     other     than       legal
\n                           remuneration, the court has to presume
\n 12<\/span><\/p>\n
     the existence of the further fact in
\n     support of the prosecution case, viz., that
\n     the gratification was accepted or
\n     obtained by the accused as a motive or
\n     reward such as mentioned in Section
\n     161, Penal Code. The presumption
\n     however, is not absolute. It is rebuttable.
\n     The accused can prove the contrary. The
\n     quantum and the nature of proof
\n     required to displace this presumption
\n     may vary according to the circumstances
\n     of each case. Such proof may partake the
\n     shape of defence evidence led by the
\n     accused, or it may consist of
\n     circumstances      appearing      in    the
\n     prosecution evidence itself, as a result of
\n     cross-examination or otherwise. But the
\n     degree and the character of the burden of
\n     proof which Section 4(1) casts on an
\n     accused person to rebut the presumption
\n     raised thereunder, cannot be equated
\n     with the degree and character of proof
\n     which under Section 101, Evidence Act
\n     rests on the prosecution. While the mere
\n     plausibility of an explanation given by
\n     the accused in his examination under
\n     Section 342, Cr.P.C. may not be enough,
\n     the burden on him to negate the
\n     presumption may stand discharged, if
\n     the effect of the material brought on the
\n     record, in its totality, renders the
\n     existence of the fact presumed,
\n     improbable. In other words, the accused
\n     may rebut the presumption by showing a
\n     mere preponderance of probability in his
\n     favour; it is not necessary for him to
\n     establish his case beyond a reasonable
\n     doubt- see Mahesh Prasad Gupta V.
\n     State of Rajasthan, AIR<\/a> 1974 SC 773.”\n<\/p><\/blockquote>\n
                       13<\/span><\/p>\n
            13. For the aforesaid reasons the learned Special P.P.\n<\/p><\/blockquote>\n<\/blockquote>\n
submits that the judgment of the trial court ought to be set aside<\/p>\n
and the accused held guilty of the charges against him.<\/p><\/blockquote>\n
            14. Learned counsel for the respondent, on the other<\/p>\n
hand, submits that the prosecution has hopelessly failed in proving<\/p>\n
the case against the respondent. It is contended that in the first<\/p>\n
place the prosecution was not even certain as to for whose loan<\/p>\n
application the respondent had allegedly demanded the bribe; the<\/p>\n
case of the prosecution from the very beginning as also in the<\/p>\n
examination in chief of P.W.9, the complainant was that the loan<\/p>\n
application was made for the loan of Ram Sagar Singh for<\/p>\n
purchase of cattle which was sent to the respondent for<\/p>\n
verification but subsequently in his cross-examination he changed<\/p>\n
the version stating that the loan application was with respect to<\/p>\n
both his brothers, Jai Prakash Singh and Ram Sagar Singh and that<\/p>\n
Ram Sagar Singh had sought loan for a shop and Jai Prakash<\/p>\n
Singh has also applied for loan for shop. It is further submitted<\/p>\n
that similarly the IO, PW 6 had initially stated in his cross-<\/p>\n
examination that the loan application was of Ram Sagar Singh but<\/p>\n
subsequently, he changed his version stating that it was for Jai<\/p>\n
Prakash Singh. It is thus urged by learned counsel that it is a<\/p>\n
serious infirmity as to the very genesis and purpose of the
\n                        14<\/span><\/p>\n
application for loan and the person for whom it was sought.<\/p>\n
Thereafter, it is submitted by him that Ram Sagar Singh has<\/p>\n
himself deposed as DW 1 and stated that he had applied and got<\/p>\n
the loan for Shop in the year 1983 itself; and further that even with<\/p>\n
respect to Jai Prakash Singh, it has clearly come out in the<\/p>\n
evidence that his loan application was sent from the Block Office<\/p>\n
to Kshetriya Gramin Bank as early as on 28.1.1986 and thereafter<\/p>\n
no further action was required by the Block Office. This fact was<\/p>\n
known to the applicant and the complainant as well and thus on<\/p>\n
the date of complaint or verification, no application was pending<\/p>\n
in the Block Office to the knowledge of the complainant and his<\/p>\n
brothers. That being the situation, there was no occasion for the<\/p>\n
respondent to demand from the complainant any bribe for the<\/p>\n
purpose of forwarding the application from the Block Office to the<\/p>\n
Bank, which is the earliest stand taken in the complaint filed by<\/p>\n
him on 19.3.1986.\n<\/p>\n
             15.    Learned    counsel   also   submits    that   the<\/p>\n
complainant himself was not personally an applicant for the loan<\/p>\n
and only one of his brothers was stated to be the applicant, and<\/p>\n
even with respect to them he has failed to take an unequivocal<\/p>\n
stand as to which brother’s case was to be forwarded and for<\/p>\n
what type of loan. It is urged that originally the stand was that the
\n                       15<\/span><\/p>\n
loan application was for cattle, for which loan, for the purpose of<\/p>\n
verification, the respondent would come into the picture as the<\/p>\n
Block Animal Husbandry Officer. Ultimately since the stand was<\/p>\n
changed and the application was stated to be for the purpose of<\/p>\n
shop, there would be no occasion at all for the respondent to be<\/p>\n
involved in the process of grant of loan for the shop, he being the<\/p>\n
Animal Husbandry Officer only of the Block. It is thus submitted<\/p>\n
by learned counsel that the respondent would have absolutely no<\/p>\n
motive to make any demand of bribe as he had no authority to<\/p>\n
make any recommendation for the purpose of grant of loan for a<\/p>\n
shop.\n<\/p>\n
            16. Learned counsel also relies upon the fact that at<\/p>\n
the time when the search was made the eye witnesses, P.Ws. 4 and<\/p>\n
5 did not tell the IO that the money taken by the accused was kept<\/p>\n
under the file of the Whatnot rather it has come in evidence that<\/p>\n
on finding nothing on the person of the accused, further search<\/p>\n
was made and the money was recovered from under the guard file<\/p>\n
lying on the rack of the Whatnot. This, according to learned<\/p>\n
counsel, further disproves the prosecution story of the accused<\/p>\n
having received the bribe and kept the same under the guard file<\/p>\n
and clearly shows that the present one is a case of plantation<\/p>\n
considering the fact that it has come in the evidence that the
\n                        16<\/span><\/p>\n
respondent used to leave his chamber for work, the same was not<\/p>\n
locked and further there was a window also in the chamber, 2 \u00bd<\/p>\n
feet away from the Whatnot.\n<\/p>\n
             17. Learned counsel further relies upon the fact that<\/p>\n
admittedly no phenolphthalein power was used on the G.C. notes<\/p>\n
and thus it cannot be conclusively proved that the accused had<\/p>\n
ever handled the said 3 G.C. notes. Considering the over all fact<\/p>\n
situation of the motive for demand of bribe, not having been<\/p>\n
established and both the eye witnesses being interested witnesses,<\/p>\n
it is urged by learned counsel that it would not be safe to rely the<\/p>\n
conclusion that the accused had demanded and accepted the bribe<\/p>\n
in the absence of use of the phenolphthalein power on the G.C.<\/p>\n
notes.\n<\/p>\n
             18.   In support of the aforesaid submission learned<\/p>\n
counsel for the respondent relies upon a decision of the Supreme<\/p>\n
Court    in the case of Raghbir Singh Vs. State of Punjab: AIR<\/p>\n
1976 SC 91, in the relevant parts of paragraphs 8 and 9 and in<\/p>\n
para-11 of which it has been observed as follows:-<\/p>\n
                            “8.- The prosecution case also suffers
\n                            from another serious infirmity and it is
\n                            that it rests entirely on the evidence of
\n                            witnesses who are either interested
\n                            witnesses      or     police    witnesses
\n                            ………..          ………………. ………\n<\/p><\/blockquote>\n
 17<\/span><\/p>\n
     9.-……….        ……                ………
\n     The evidence in regard to the search of
\n     the person of the appellant and the
\n     seizure of five marked currency notes
\n     from him is, in the contest of the other
\n     facts and circumstances of the case, not
\n     such as to inspire confidence and cannot
\n     be implicitly accepted.\n<\/p><\/blockquote>\n
     11.- It is clear from the aforesaid
\n     discussion that the evidence led on
\n     behalf of the prosecution is not such as
\n     to inspire confidence in the mind of the
\n     court and we must say that we are not at
\n     all satisfied that the appellant either
\n     demanded bribe of Rs. 50\/- from Jagdish
\n     Rai or that Jagdish Rai paid bribe of Rs.
\n     50\/- to the appellant by handing over
\n     five marked currency notes to him or
\n     that five marked currency notes of Rs.
\n     10\/- each were recovered from the
\n     pocket of the appellant when his person
\n     was searched by the raiding party. We
\n     may take this opportunity of pointing out
\n     that it would be desirable if in cases of
\n     this kind where a trap is laid for a public
\n     servant, the marked currency notes,
\n     which are used for the purpose of trap,
\n     are treated with phenolphthalein powder
\n     so that the handling of such marked
\n     currency notes by the public servant can
\n     be detected by chemical process and the
\n     court does not have to depend on oral
\n     evidence which is sometimes of a
\n     dubious character for the purpose of
\n     deciding the fate of the public servant. It
\n     is but meet that science-oriented
\n     detection of crime is made a massive
\n     programme of police, for in our
\n     technological     age    nothing      more
\n     primitive can be conceived of than
\n     denying the discoveries of the sciences
\n     as aids to crime suppression and nothing
\n                       18<\/span><\/p>\n
                           cruder can retard forensic efficiency
\n                           than swearing by traditional oral
\n                           evidence only, thereby discouraging
\n                           liberal use of scientific research to prove
\n                           guilt. Vide Som Prakash Vs. State of
\n                           Delhi, (1974) 3 SCR 200 = (AIR 1974
\n                           SC 989 = 1974 Cri L.J. 784).”<\/p><\/blockquote>\n
            19. I have considered the submissions of learned<\/p>\n
counsels for the parties and the materials on the record. It is<\/p>\n
evident from the complaint (Ext.8) filed by PW-9 on 19.3.1986<\/p>\n
that he speaks of an application on behalf of his brother, and not<\/p>\n
brothers, who was in the BPL list. The name of the brother is not<\/p>\n
mentioned but subsequently when PW 4 went for verification on<\/p>\n
22.3.1986, it is the complainant’s cousin, Ram Sagar Singh who<\/p>\n
had accompanied the complainant and called the respondent.<\/p>\n
Again in the report dated 7.4.1986 submitted by PW-6, it is clearly<\/p>\n
mentioned that the demand of bribe was made with respect to loan<\/p>\n
application of Ram Sagar Singh. In the examination-in-chief of<\/p>\n
PW-9 also it was stated that the loan application was of Ram<\/p>\n
Sagar Singh. Only subsequently in the course of cross-<\/p>\n
examination the name of Jai Prakash Singh has cropped up as the<\/p>\n
brother whose application was pending in the Block Office. Again<\/p>\n
the clear stand in the examination-in-chief of the complainant was<\/p>\n
that the loan was for the purpose of cattle which was to be
\n                       19<\/span><\/p>\n
accordingly verified by the respondent being the Block Animal<\/p>\n
Husbandry Officer and for the said purpose he had approached the<\/p>\n
respondent who thereafter made the demand of bribe. The<\/p>\n
examination-in-chief of the PW-9 took place on 16.1.1989.<\/p>\n
Subsequently, in the course of his cross-examination on 30.1.1989<\/p>\n
he changed the version and started speaking about the loan<\/p>\n
application of both Jai Prakash Singh and Ram Sagar Singh and<\/p>\n
further changed the version that both of them had applied for loan<\/p>\n
for Shop and not for cattle. The said changing version of the<\/p>\n
complainant has been correctly noted and referred to by the<\/p>\n
learned trial court in its judgment. In any case, once the<\/p>\n
subsequent version is put forward       that the loan was for the<\/p>\n
purpose of grocery shop then there would be no occasion for the<\/p>\n
respondent to be involved in recommending the said loan. The<\/p>\n
statements made by the PWs. like the complainant to the contrary<\/p>\n
has to be treated as false and worthless in the absence of any<\/p>\n
document brought on the record to show that even in the case of<\/p>\n
application for loan for shop of grocery the recommendation is<\/p>\n
required by the Animal Husbandry Officer as on the face of it the<\/p>\n
same appears to be highly improbable.\n<\/p>\n
            20. Similarly, the statement of the Investigating<\/p>\n
Officer, PW-6 who was also the leader of the raiding party does
\n                        20<\/span><\/p>\n
not inspire any confidence. Firstly, he says that the application<\/p>\n
was of Ram Sagar Singh, but subsequently he changes his version<\/p>\n
and says that it was loan application of Jai Prakash Singh.<\/p>\n
             21. The evidence of DW-1 Ram Sagar Singh, the<\/p>\n
cousin of the complainant totally demolishes the case of the<\/p>\n
prosecution that any application for loan with respect to him was<\/p>\n
pending in the Block Office as he has clearly stated that he had<\/p>\n
applied and received the loan under the BPL scheme in the year<\/p>\n
1983 itself. Nothing has been brought on the record by the<\/p>\n
prosecution to show that the said statement of DW 1 was false nor<\/p>\n
any document has been brought on the record by the prosecution<\/p>\n
to show that any application of Ram Sagar Singh was pending in<\/p>\n
the Block Office in the year 1986 in support of their stand.<\/p>\n
             22.   Even if it is accepted that the application in<\/p>\n
question was of Jai Prakash Singh and not Ram Sagar Singh in<\/p>\n
that event    also while no document has been brought on the<\/p>\n
record by the prosecution in support of the said stand, on the other<\/p>\n
hand, a large number of documents have been produced by the<\/p>\n
defence which go to show that on the basis of the procedure as<\/p>\n
stated by the said Bank Manager, and it has also been admitted by<\/p>\n
the IO, PW-6, the said application of Jai Prakash Singh was for<\/p>\n
purchase of articles for shop and had been sent by the Block
\n                        21<\/span><\/p>\n
Office as early as on 28.1.1986 itself, which letter in fact was sent<\/p>\n
on behalf of the Block Development Officer by the respondent<\/p>\n
himself. Thereafter on no defect being found in the application, it<\/p>\n
was not required to be and never returned to the Block Office<\/p>\n
rather the further verification of the same was made by the Field<\/p>\n
Officer of the Bank who after interviewing the said Jai Prakash<\/p>\n
Singh on 28.2.1986 recommended the case for loan. Thereafter,<\/p>\n
the Bank forwarded the application for grant of subsidy to the<\/p>\n
DRDA which granted him subsidy on 6.3.1986, after which the<\/p>\n
loan agreement was executed by Jai Prakash Singh on 31.3.1986<\/p>\n
and cheque was also issued by the Bank on the same date and<\/p>\n
articles were also purchased on the said date and handed over to<\/p>\n
him. It is thus unimpeachably clear from the said evidence brought<\/p>\n
on the record that even on the date when the complaint was filed<\/p>\n
on 19.3.1986, the matter of Jai Prakash Singh was not pending in<\/p>\n
the Block Office rather it had already been forwarded to the Bank<\/p>\n
and the Bank had already recommended much prior to that date to<\/p>\n
the knowledge of said Jai Prakash Singh and the DRDA much<\/p>\n
before had already granted subsidy to Jai Prakash Singh. Further,<\/p>\n
even before the raid was organized, Jai Prakash Singh had<\/p>\n
received the articles for the shop and nothing remained to be done.<\/p>\n
In the said circumstances, the entire case of the respondent
\n                         22<\/span><\/p>\n
demanding money for forwarding the application of Jai Prakash<\/p>\n
Singh clearly appears to be false and cooked up one. The learned<\/p>\n
trial court in this regard has rightly come to the conclusion that t at<\/p>\n
the relevant time there was no occasion for the complainant to<\/p>\n
approach the accused for forwarding the application of the brother<\/p>\n
of the complainant and there was no motive for the accused either<\/p>\n
in discharge of his official duty or otherwise to demand or accept<\/p>\n
any bribe, as alleged. The court below has rightly concluded that<\/p>\n
the said circumstance weakens the foundation of the prosecution<\/p>\n
story and introduces the element of infirmity in it.<\/p>\n
             23. The submission of learned Spl. P.P., Vigilance<\/p>\n
that the motive would not be relevant in view of the clear evidence<\/p>\n
of demand and acceptance of bribe, can have no force in the facts<\/p>\n
and circumstances of the case. The clear story of the complainant<\/p>\n
from the very beginning was that the bribe was demanded by the<\/p>\n
respondent for forwarding the application of his brother and if the<\/p>\n
very basis of the complaint disappears then holding the respondent<\/p>\n
guilty of having demanded and accepted the bribe merely on the<\/p>\n
evidence of the complainant and the verifier would be unjustified.<\/p>\n
The absence of any substance in the complaint throws serious<\/p>\n
doubt on the entire case of the prosecution and the same could<\/p>\n
thereafter be accepted only on the basis of unimpeachable
\n                       23<\/span><\/p>\n
evidence of demand and acceptance of bribe which is not the case<\/p>\n
herein. There are only two eye witnesses, the complainant PW-9<\/p>\n
and the verifier, PW-4. It has been clearly held by the Apex Court<\/p>\n
in Raghbir Singh’s case (supra) that if the prosecution case rests<\/p>\n
solely on the evidence of witnesses who are either interested or<\/p>\n
police witnesses then it ought to be held to be suffering from<\/p>\n
serious infirmity. So far as the seizure witnesses are concerned,<\/p>\n
apart from the fact that PW-8 has turned hostile, even assuming<\/p>\n
that the other seizure list witness P.W.5 is independent and<\/p>\n
reliable, then he has only witnessed the recovery of Rs. 300\/- from<\/p>\n
under a guard file from a rack of the Whatnot and there is no<\/p>\n
recovery from the person of the respondent. Hence, at best, it is a<\/p>\n
case of recovery of Rs. 300\/- from the office room of the<\/p>\n
respondent. In view of the evidence that the door of the office of<\/p>\n
the respondent used to remain open when he went out of the office<\/p>\n
room, as also the existence of a window not very far from the<\/p>\n
Whatnot, in such circumstances, the defence version that it is a<\/p>\n
case of plantation, cannot be easily brushed aside particularly<\/p>\n
keeping into consideration the complete failure of the prosecution<\/p>\n
to support the factum of the demand of bribe.\n<\/p>\n
            24. The failure of the Vigilance Department to apply<\/p>\n
phenolphthalein power to the G.C. notes also makes it difficult for
\n                        24<\/span><\/p>\n
this Court to accept the prosecution version that the respondent<\/p>\n
had personally accepted the notes and handled them before<\/p>\n
keeping them under the guard file.\n<\/p>\n
             25. Thus on a consideration of the entire facts and<\/p>\n
circumstances and the evidence of the witnesses, it is difficult for<\/p>\n
this Court to reach a different conclusion than that recorded by the<\/p>\n
learned Special Judge in his judgment. Moreover, it is an appeal<\/p>\n
against acquittal. Once the court below, on a detailed examination<\/p>\n
of the evidence on the record, has come to the conclusion that the<\/p>\n
prosecution has failed to establish either on the point of motive or<\/p>\n
demand and acceptance of bribe, this Court would not come to a<\/p>\n
different conclusion unless the appellants could have satisfied this<\/p>\n
Court on cogent material that the findings recorded by the trial<\/p>\n
court are contrary to the weight of the evidence on record and<\/p>\n
perverse. In an appeal against acquittal the presumption of<\/p>\n
innocence of the accused is certainly not weakened and the burden<\/p>\n
upon the prosecution becomes much more onerous. In such a case<\/p>\n
the conviction cannot be recorded merely because this Court is of<\/p>\n
the view that another conclusion is possible on the basis of<\/p>\n
evidence. If the view taken by the trial court is reasonable then the<\/p>\n
judgment of acquittal ought not to be set aside. In the present<\/p>\n
matter, not only the appellant has failed to show that the case
\n                       25<\/span><\/p>\n
against the respondent is proved beyond all reasonable doubt on<\/p>\n
the evidence on the record, it has hopelessly failed to show that<\/p>\n
any view could reasonably be taken in the matter contrary to what<\/p>\n
has been held by the court below.\n<\/p>\n
            26. Thus on a consideration of the entire facts and<\/p>\n
circumstances, this Court does not find any merit in the appeal. It<\/p>\n
is accordingly dismissed.\n<\/p>\n
                                (Ramesh Kumar Datta,J.)<\/p>\n
Patna High Court
\nDated 5th August, 2010
\nNAFR\/ S.Pandey.<\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court State Of Bihar vs Dr.Jwala Pd. Pandey on 4 August, 2010 Author: Ramesh Kumar Datta IN THE HIGH COURT OF JUDICATURE AT PATNA G.APP. (SJ) No. 41 of 1989 Against the judgment of acquittal dated 29th June, 1989, passed by Shri N.C. Lala, Special Judge (Vigilance), Patna in Spl. Case No. 32\/86. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-178158","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nState Of Bihar vs Dr.Jwala Pd. Pandey on 4 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-vs-dr-jwala-pd-pandey-on-4-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Bihar vs Dr.Jwala Pd. 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